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2004 DIGILAW 807 (PAT)

Tapendra Chatterjee v. State

2004-08-10

V.N.SINHA

body2004
Judgment 1. Heard Mrs. Anjana Prakash for the appellants/petitioners and Sri Rakesh Kumar for the respondent C.B.l. 2. I.A. No. 621/04 has been filed praying interalia to stay the operation of fine imposed under the impugned judgment dt. 23.4.04. In this connection counsel for the appellant/petitioner has invited my attention to the provision contained in subsection (2) of Section 357 of the Code of Criminal Procedure (hereinafter referred to as the Code) and has submitted that until the pendency of the appeal the fine imposed under the impugned judgment has got to be stayed. In this connection she has also invited my attention to the order dt.2.6.04 passed in connected Cr. Appeal No.348/04 whereunder I have already stayed the fine imposed under the impugned judgment as regards the appellant of that appeal. Having invited my attention to the aforesaid legal position and the order passed in connected appeal learned counsel submitted that in this case also similar order staying the fine may also be passed. 3. Learned counsel for the CBI Sri Rakesh Kumar with reference to Section 389 of the Code as also judgment of the Hon ble Supreme Court in the case of Ram Lakhan & Ors. V/s. State of U.P. reported in 1996 Cr.L.Journal 3496 and in the case of K.C Sareen V/s. CBl reported in 2001 Volume 6 SCC 584, submitted that the pendency of the appeal as also grant of bail does not mean that sentence of fine and conviction is stayed and as such sentence of fine imposed under the impugned judgment should not be stayed. He further laid emphasis over the fact that from the prosecution case it appears that a sum of Rs. 2 crores was defalcated and in recognition of the said defalcation the fine of Rs. 1 lac has been imposed against each of the appellant. 4. Having considered the rival submission perused the provision contained in section 357(2) of the Code which is quoted 357. Order to pay compensation. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal. 5. Order to pay compensation. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal. 5. To me it appears that the mandate of sub-section (2) of Section 357 is that payment of fine imposed in a case which is subject to appeal should not be made unit the period allowed for presenting the appeal has elapsed or if an appeal has been presented before the decision of the appeal. The two cases relied upon by the learned counsel for the CBI has no application to the facts of this appeal as in those cases the question which was considered by the Hon ble Apex Court was whether suspension of the sentence tantamounts to suspending the conviction. In the case in hand by suspending the sentence, by granting bail/directing for non-payment of fine, does not mean that the conviction of the appellant has been suspended as by granting ball and suspending the payment of fine only the sentence imposed against the appellant is suspended. In view of the legal position l accordingly stay the payment of fine imposed against the appellants during the pendency of the appeal. 6. This interlocutory application is accordingly allowed.